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Hall v Carney (No 2)

Hall v Carney (No 2)

Case [2012] SASCFC 105 17 September 2012

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SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
HALL v CARNEY & ORS (No 2)
[2012] SASCFC 105
Judgment of The Full Court
(The Honourable Justice Gray, The Honourable Justice Vanstone and The Honourable Justice Stanley)
17 September 2012
SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - PROBATE AND LETTERS OF ADMINISTRATION - COSTS - GENERAL PRINCIPLES
PROCEDURE - COSTS - DEPARTING FROM THE GENERAL RULE - OTHER CASES - FAILURE IN PORTION OF A CASE
PROCEDURE - COSTS - DEPARTING FROM THE GENERAL RULE - ORDER FOR COSTS ON INDEMNITY BASIS
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH DISCRETION OF COURT BELOW - IN GENERAL - WRONG PRINCIPLE - PARTICULAR CASES - DECISION AS TO COSTS
Consideration of the question of costs - where the Full Court upheld the order of the trial Judge pronouncing for the force and validity of the deceased's last will and testament - where the trial Judge rejected the defendant's case that circumstances of suspicion had been established that rebutted the presumption that would otherwise form due execution and would establish knowledge and approval - where the trial Judge concluded that even if the presumption did not arise, the evidence in the trial established knowledge and approval - where the trial Judge made no order as to costs between the plaintiffs and defendant - where, on appeal, the Full Court decided that circumstances of suspicion did in fact arise, but the Full Court agreed with the trial Judge's conclusions that, on the evidence, knowledge and approval had been established.
Held (the Court): The circumstances of suspicion that arose justified the defendant requiring the plaintiffs to discharge at trial the burden of proving knowledge and approval - order for costs made by the trial Judge set aside - costs of the trial of all parties to be paid out of the deceased's estate on an indemnity basis.
Held per Vanstone J and Stanley J (Gray J contra): Notwithstanding the defendant/appellant’s success on the discrete issue of whether suspicious circumstances rebutting the presumption in favour of due execution had been established, the appeal was doomed to fail - the defendant/appellant had no realistic prospect of overturning the trial Judge's findings that even if suspicious circumstances existed, the evidence clearly established knowledge, approval and testamentary capacity - there should not be an award of costs in favour of the unsuccessful defendant/appellant - the interests of justice do not warrant a further depletion in the estate by the making of an order that the defendant/appellant’s costs of the appeal be paid out of the estate - the plaintiff/respondent’s costs should be paid out of the deceased's estate on the basis of indemnity.
Hall v Carney & Ors [2012] SASCFC 76; Mitchell & Anor v Gard & Anor (1863) 3 Sw.&Tr. 275; Kostic v Chaplin & Ors [2007] EWHC 2909 (Ch); Ponder & Anor v Burmeister & Ors [1909] SALR 62; Twist & Ors v Tye [1902] P 92; Dean v Russel [1820] 3 Phil.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hall v Carney (No 2)

Details

AGLC: Hall v Carney (No 2) [2012] SASCFC 105
Case: [2012] SASCFC 105
Decision Date: 17 September 2012

CaseChat Overview and Summary

In *Hall v Carney (No 2)*, the Full Court of the Supreme Court of South Australia considered an appeal concerning the costs of a probate dispute. The dispute arose from a challenge to the validity of the deceased's last will and testament. The trial judge had pronounced for the force and validity of the will, rejecting the defendant's argument that suspicious circumstances rebutted the presumption of due execution, knowledge, and approval.

The legal issues before the Full Court were whether suspicious circumstances had been established, and if so, what impact this had on the costs order made by the trial judge. The Full Court was also required to determine the appropriate costs order for both the trial and the appeal, particularly in light of the defendant's partial success on appeal regarding the existence of suspicious circumstances, despite the ultimate failure of the appeal.

The Full Court, by majority, held that while suspicious circumstances did arise, justifying the plaintiffs in having to prove knowledge and approval at trial, these circumstances did not ultimately prevent the plaintiffs from establishing knowledge and approval on the evidence. The majority agreed with the trial judge's conclusion that knowledge and approval were established. However, the majority set aside the trial judge's costs order and ordered that the costs of the trial for all parties be paid out of the deceased's estate on an indemnity basis.

Regarding the appeal, the majority found that the defendant's success on the discrete issue of suspicious circumstances did not warrant an award of costs in their favour, as the appeal was otherwise doomed to fail. The majority concluded that the interests of justice did not support further depletion of the estate by ordering the defendant's appeal costs be paid out of it, but ordered that the plaintiffs' costs of the appeal be paid out of the estate on an indemnity basis.

Orders